Peralta v. Vons Companies ( 2018 )

Filed 5/30/18; Certified for publication 6/26/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROSE PERALTA et al., B282130
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC567623)
v.
THE VONS COMPANIES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dan T. Oki, Judge. Affirmed.
Carpenter, Zuckerman & Rowley, Stephen K. McElroy and
Josh M. Dowell for Plaintiffs and Appellants.
Pauline White for Defendant and Respondent.
——————————
This appeal arises from a slip and fall accident at a Vons
grocery store. Rose and Raul Peralta1 (collectively, Peraltas)
argue the trial court improperly entered summary judgment for
The Vons Companies, Inc. (Vons), as there were triable issues of
material fact that should have been decided by a jury. Vons
argues there is no admissible evidence showing Vons breached its
duty of care, or that any act or omission on their part caused
Rose’s injuries. As we conclude appellant has failed to establish
the existence of any issues of material fact, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
On the morning of February 2, 2014, Rose entered a Vons
grocery story to purchase some bread. An employee informed
Rose that the bread was baking and would be ready in
approximately five to 10 minutes. Rose picked up a box of
pastries and returned to the bakery after 10 minutes had passed.
As she was approaching the employee entrance where she was
told to pick up the fresh bread, Rose’s left foot slid and she fell to
the ground. Rose’s pastries fell to the ground as well. Rose did
not see anything on the floor prior to or after the fall, but stated
in her deposition testimony that she felt as though her foot slid
on “some sort of oil or grease.” She filled out a customer accident
form in which she wrote that she “felt the floor was slippery” but
did not know if there was anything on the floor.
An assistant store manager, Peggy Pellet (Pellet), was
summoned to the bakery section after Rose fell. Pellet observed
that Rose wore three- to four-inch stiletto heels. According to
Pellet, Rose could not identify anything that had caused her to
1 We refer to Rose and Raul Peralta by their first names for
the sake of clarity, intending no disrespect.
2
slip on the floor. Pellet immediately searched the floor and found
nothing except the crumbs from the pastries Rose had been
carrying; Pellet found “no spill, nothing ‘slippery,’ no leak,
nothing.” Rose admitted in her deposition testimony that she
was wearing three-inch heels when she fell. In response to
Vons’s interrogatories, Rose stated that none of her clothing was
soiled, stained, or otherwise damaged as a result of the fall.
On December 23, 2014, Peraltas filed a complaint in the
Los Angeles County Superior Court alleging causes of action for
general negligence and premises liability against Vons. The
complaint alleges Rose suffered wage loss, hospital and medical
expenses, general damage, and loss of earning capacity; Raul
alleged he suffered damages in the form of loss of consortium.
On September 12, 2016, Vons filed a motion for summary
judgment (MSJ), alleging Vons had no notice or knowledge of any
dangerous condition on its floor, denying any causation between
any act or inaction by Vons and Rose’s alleged injuries, and
alleging Vons met its duty of care by performing regular formal
inspections and continual informal inspections to locate any
potential hazards or spills. Vons supported the MSJ with a
declaration by Pellet, in which she stated that there were “no
records of any other person falling in the same place” where Rose
had fallen, either prior or subsequent to Rose’s fall. Pellet also
stated that Vons conducts formal inspections, called “sweeps,” at
least once per hour. These sweeps are completed once an
employee has walked the entire store, including the bakery area,
looking for any “spills and/or hazards.” Once an employee has
conducted a sweep, he or she enters their employee number into a
machine in the store that automatically records the time. Pellet
stated she printed the sweeps for the day of Rose’s fall and found
3
that the last inspection was recorded less than eight minutes
before Rose fell.
Peraltas filed an opposition to motion for summary
judgment on November 15, 2016, supported by two declarations:
one by Rose; and one by Brad Avrit (Avrit), a licensed civil
engineer with extensive experience investigating and analyzing
slip and fall accidents. In her declaration, Rose stated, in
pertinent part, that: she had worn the three-inch heels she was
wearing at the time of the fall many times in the past without
incident; she was walking at a normal pace and gait at the time
of the fall; and, she was in the bakery for 10 to 15 minutes before
the fall and did not observe any employees conducting inspections
of the area.2
In his declaration, Avrit stated that a senior member of his
staff analyzed the slip resistance of the flooring where Rose fell.
2 Rose also stated that there was “no question that there
was a foreign substance on the floor” when she fell and, although
she did not know what the substance was, she assumed it was
grease or oil; and there was “no doubt in [her] mind” that she “fell
because there was a foreign substance on the laminate type wood
flooring at the entrance to the bakery section.” Vons objected to
these statements on the grounds that they were speculative,
constituted improper opinion, and contradicted deposition
testimony and interrogatory responses. The trial court sustained
the objection without indicating the specific grounds upon which
it based its ruling. Rose does not challenge this ruling on appeal;
she has thus waived the issue and we consider the statements to
have been property excluded. (Lopez v. Baca (2002) 98
Cal. App. 4th 1008, 1014–1015.) Furthermore, we may not
consider evidence to which objections have been made and
sustained by the trial court. (Guz v. Bechtel National Inc. (2000)
24 Cal. 4th 317, 334 (Guz).)
4
According to the analysis, the flooring had an average slip-
resistance of 0.67 under dry conditions and an average slip-
resistance of 0.44 under “wet with water” conditions. As the
“national recognized industry standard” provides that a floor
surface is safe if it has a slip resistance of 0.50 or above, Avrit
concluded the flooring upon which Rose slipped and fell “would
constitute a dangerous condition when greases and oil are
present.” Avrit also stated that cooking greases and oils would be
difficult for a pedestrian utilizing reasonable care to perceive;
that the manner in which Rose fell is consistent with a slip
created by a foreign substance and would not be expected to occur
absent a foreign substance on the floor; and that “no frequency of
inspections or sweeps . . . could ensure that the floor was in a
reasonably safe condition for customers.” According to Avrit, the
floor should have been made safe either through slip-resistance
flooring or the placement of mats, adhesive tapes, or other non-
slip coverings on the surface where Rose fell. Avrit ultimately
concluded that “the flooring at the area of the slip and fall was
unreasonably dangerous at the time of the incident and was the
cause” of Rose’s fall.
A hearing on the MSJ convened on February 2, 2017. On
February 14, 2017, the trial court granted the MSJ, finding that
Vons sufficiently demonstrated that it neither knew nor should
have known about the allegedly dangerous condition and that
Peraltas “failed to produce any evidence that the floor was wet
with water, grease, oil, or any other substance.”
STANDARD OF REVIEW
We review a trial court’s granting summary judgment de
novo, “considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made
5
and sustained.” (Guz, supra, 24 Cal.4th at p. 363.) We “liberally
constru[e] the evidence in support of the party opposing summary
judgment and resolv[e] doubts concerning the evidence in favor of
that party.” (Miller v. Department of Corrections (2005) 36
Cal. 4th 446, 460.)
Summary judgment is warranted “if all the papers
submitted show that there is no triable issue as to any material
fact” such that “the moving party is entitled to judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The moving
party bears the burden of showing the court that the plaintiff ‘has
not established, and cannot reasonably expect to establish, a
prima facie case.’ ” (Miller v. Department of Corrections, supra,
36 Cal.4th at p. 460.) The burden then “ ‘shifts to the plaintiff to
show the existence of a triable issue; to meet that burden, the
plaintiff “may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that
cause of action.” ’ ” (Lyle v. Warner Brothers Television
Productions (2006) 38 Cal. 4th 264, 274.)
DISCUSSION
A store owner is not the insurer of its patrons’ personal
safety, but does have a duty to exercise reasonable care to keep
the premises reasonably safe for patrons. (See Ortega v. Kmart
Corp. (2001) 26 Cal. 4th 1200, 1205 (Ortega).) This includes a
duty to keep the floors safe for patrons’ use. (Tuttle v. Crawford
(1936) 8 Cal. 2d 126, 130.) To establish an owner’s liability for
negligence, the plaintiff must prove duty, breach, causation, and
damages. (Ortega, at p. 1205.)
The parties do not dispute that Vons has a duty of care to
keep its premises reasonably safe for its patrons. The issues
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Peraltas presents on appeal are: (1) whether a greasy or oily
substance was on the floor where Rose slipped and fell; and
(2) whether Vons’s sweep inspections of the bakery were
adequate and conducted within a reasonable time before her fall.
These, Peraltas argue, are triable issues of material fact that
should have been decided by a jury.
I. The presence of a dangerous condition on the floor
where Rose fell
To meet its burden of proof, a “ ‘plaintiff must introduce
evidence which affords a reasonable basis for the conclusion that
it is more likely than not that the conduct of the defendant was a
cause in fact of the result. A mere possibility of such causation is
not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for
the defendant.’ ” (Ortega, supra, 26 Cal.4th at pp. 1205–1206.)
Rose unequivocally stated that she did not see anything on
the floor prior to or after her fall. Pellet, who immediately
responded to the scene of the fall, inspected the surrounding area
and did not find any substances on the floor other than the
crumbs that fell from Rose’s package of pastries.
Peraltas attempt to establish that the floor was
dangerously slippery by introducing hearsay that was already
rejected by the trial court. Peraltas argue that Vons was on
constructive notice that the floor where she fell was dangerously
slippery because Pellet allegedly told her that employees had
fallen there in the past. In her deposition, Rose testified that,
immediately after her fall, Pellet told her, “many times the
employees often fall in this area, taking things in and out of
there, the employees fall in that area.” Vons objected to the use
7
of Rose’s statement that Pellet had told her that employees
previously fell in the area where Rose slipped. Vons argued the
statement was hearsay, and the trial court sustained the
objection. Peraltas do not challenge this ruling on appeal.
Peraltas have thus waived the issue and we consider the
statement to have been properly excluded for all purposes.
(Lopez v. Baca, supra, 98 Cal.App.4th at p. 1014.)
In its order granting summary judgment, the trial court
declared that Peraltas “offered inadmissible, incompetent
evidence” and “hearsay.” The trial court also made a finding that
“[n]o one else, customer or employee, had fallen at this same
location in Vons, either before or after” Rose’s fall. As the trial
court sustained Vons’s objection to the use of Rose’s statement
that Pellet said employees had previously fallen on the area of
Rose’s slip, we may not consider it here. (Guz, supra, 24 Cal.4th
at p. 334.)
Peraltas also attempt to establish there was a slippery
substance on the floor through Avrit’s declaration, in which he
opines that the manner in which Rose fell is consistent with a
slip created by a foreign substance. Mere conjecture, however, is
“legally insufficient to defeat summary judgment.” (Buehler v.
Alpha Beta Co. (1990) 224 Cal. App. 3d 729, 734.) The mere
possibility that there was a slippery substance on the floor does
not establish causation. Absent any evidence that there was a
foreign substance on the floor, or some other dangerous condition
created by or known to Vons, Peraltas cannot sustain their
burden of proof.
Peraltas’ evidence suggests, at best, that Vons may have
breached a duty of care by installing flooring that falls below
industry standards when wet. Without any evidence showing
8
that a slippery substance was in fact on the floor at the time she
fell, or that others had slipped in the same location, there is no
legitimate basis to support an inference that Vons’s breach
caused Rose to fall. Speculation does not establish causation; we
therefore conclude that there is no admissible evidence to create
a triable issue of material fact as to whether Vons was on
constructive notice that the floor was slippery or otherwise
dangerous.
II. Adequacy and timing of inspections
Peraltas also allege there is a factual dispute as to whether
Vons inspected the property within a reasonable period of time
prior to Rose’s fall in order to ensure the flooring was free of any
spills or other dangerous conditions. Evidence of a store owner’s
“failure to inspect the premises within a reasonable period of
time prior to the accident is indicative of defendant’s negligence
and creates a reasonable inference that the dangerous condition
existed long enough for it to be discovered by the owner.”
(Ortega, supra, 26 Cal.4th at p. 1211.) A store owner must
“inspect the premises or take other proper action to ascertain
their condition, and if, by the exercise of reasonable care, the
owner would have discovered the condition, he is liable for failing
to correct it.” (Id. at p. 1207.)
In her declaration, Pellet stated that a sweep of the entire
store, including the bakery, had been recorded less than eight
minutes before Rose fell. Rose, however, claimed that she did not
observe any employees in the bakery area during the 10 to 15
minutes she had been in the area waiting for her bread. Rose’s
statement, however, is insufficient to defeat summary judgment
because “a defendant is entitled to judgment as a matter of law if
the plaintiff fails to show that the dangerous condition existed for
9
at least a sufficient time to be discovered by ordinary care and
inspection.” (Ortega, supra, 26 Cal.4th at p. 1207.) As discussed
above, Peraltas have failed to show that a dangerous condition
existed at all. Rose stated she did not see any substances on the
floor before or after the fall. Pellet examined the area after
Rose’s fall and discovered nothing but the crumbs that had fallen
from Rose’s box of pastries as she fell. While Vons had a duty to
inspect the aisles for hazardous conditions, “the minimum duty of
a plaintiff is to show that the aisles were in fact unsafe and that
she fell because of that condition.” (Vaughn v. Montgomery Ward
& Co. (1950) 95 Cal. App. 2d 553, 558.)
We therefore conclude that, even if Vons did not conduct an
inspection of the bakery area in the 10 to 15 minutes before
Rose’s fall, Peraltas have failed to show that Vons would have
discovered the condition had it conducted such an inspection.
Vons, therefore, cannot be held liable for failing to correct a
condition it would not have discovered through the exercise of
reasonable care.
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
JOHNSON, J.
We concur:
CHANEY, Acting P. J. BENDIX, J.
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Filed 6/26/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROSE PERALTA et al., B282130
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC567623)
v. CERTIFICATION AND
ORDER FOR PUBLICATION
THE VONS COMPANIES, INC.,
Defendant and Respondent.
The opinion in the above-entitled matter filed May 30,
2018, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
CHANEY, Acting P. J. JOHNSON, J. BENDIX, J.